Doe Ex Rel. Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, a minor, by his mother 
and next friend, Jane Doe,
Plaintiff-Appellant,
and
JOSEPHINE HELELANI PAUAHI
RABAGO,
Intervenor,
v.
KAMEHAMEHA SCHOOLS/BERNICE
PAUAHI BISHOP ESTATE; CONSTANCE
LAU, in her capacity as Trustee of
the Kamehameha Schools/Bernice No. 04-15044

Pauahi Bishop Estate; NAINOA D.C. No.
THOMPSON, in his capacity as CV-03-00316-ACK
Trustee of the Kamehameha
Schools/Bernice Pauahi Bishop OPINION
Estate; DIANE J. PLOTTS, in her
capacity as Trustee of the
Kamehameha Schools/Bernice
Pauahi Bishop Estate; ROBERT
K.U. KIHUNE, in his capacity as
Trustee of the Kamehameha
Schools/Bernice Pauahi Bishop
Estate; J. DOUGLAS ING, in his
capacity as Trustee of the
Kamehameha Schools/Bernice
Pauahi Bishop Estate,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
8921
8922 DOE v. KAMEHAMEHA SCHOOLS
Argued and Submitted
November 4, 2004—Honolulu, Hawaii
Filed August 2, 2005
Before: Robert R. Beezer, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Graber
DOE v. KAMEHAMEHA SCHOOLS 8925
COUNSEL
Eric Grant, Sweeney, Davidian, Greene & Grant, L.L.P., Sac-
ramento, California, for the plaintiff-appellant.
Kathleen M. Sullivan, Stanford, California, and David Schul-
meister, Cades Schutte, L.L.P., Honolulu, Hawaii, for the
defendants-appellees.
Patrick M.K. Richardson, McCracken, Byers & Haesloop,
L.L.P., San Mateo, California, for the amici curiae.
8926 DOE v. KAMEHAMEHA SCHOOLS
OPINION
BYBEE, Circuit Judge:
Since 1887, the Kamehameha Schools have operated as the
charitable legacy of Princess Bernice Pauahi Bishop, the last
direct descendant of King Kamehameha I. Private and non-
sectarian, the Kamehameha Schools give preference to stu-
dents who are of native Hawaiian ancestry. As a result of this
policy, attendance at the Kamehameha Schools is effectively
limited to those descended from the Hawaiian race. The issue
considered here is a significant one in our statutory civil rights
law: May a private, nonsectarian, commercially operated
school, which receives no federal funds, purposefully exclude
a student qualified for admission solely because he is not of
pure or part aboriginal blood? The parties agree that this is a
case of first impression in our circuit.
The plaintiff, John Doe, appeals the district court’s grant of
summary judgment in favor of defendants, the Kamehameha
Schools and the Bernice Pauahi Bishop Estate and its individ-
ual trustees. He argues that he was denied entry to the Kame-
hameha Schools because of his race in violation of 42 U.S.C.
§ 1981, which forbids racial discrimination in the making and
enforcement of contracts. For the following reasons, we agree
with Doe and find that the Schools’ admissions policy, which
operates in practice as an absolute bar to admission for those
of the non-preferred race, constitutes unlawful race discrimi-
nation in violation of § 1981. Accordingly, we reverse the dis-
trict court’s decision granting summary judgment to the
Kamehameha Schools.
I
The facts are not in dispute. The Kamehameha Schools
comprises a system of private, nonsectarian schools which are
dispersed among the Hawaiian Islands. See EEOC v. Kameha-
meha Sch./Bishop Estate, 990 F.2d 458, 461 (9th Cir. 1993).
DOE v. KAMEHAMEHA SCHOOLS 8927
The school system was founded in 1887 under a “charitable
testamentary trust established by the last direct descendent of
[Hawaii’s] King Kamehameha I, Princess Bernice Pauahi
Bishop.” Burgert v. Lokelani Bernice Pauahi Bishop Trust,
200 F.3d 661, 663 (9th Cir. 2000). At the time of her death
in 1884, Princess Pauahi Bishop was the largest landowner in
Hawai‘i, owning approximately one-tenth of the aggregate
lands. Her will provided that the bulk of her estate should be
placed in a charitable trust “to erect and maintain in the
Hawaiian Islands two schools, each for boarding and day
scholars, one for boys and one for girls, to be known as, and
called the Kamehameha Schools.” Will of Bernice Pauahi
Bishop, reprinted in WILLS AND DEEDS OF TRUST 17-18 (3d ed.
1957) (hereinafter “Pauahi Bishop Will”). See also Kameha-
meha Sch./Bishop Estate, 990 F.2d at 459.
Under the direction of the original trustees, chaired by
Pauahi’s husband, Charles Reed Bishop, both schools opened
shortly after her death; the boys’ school in the Fall of 1887
and the girls’ in the Fall of 1894. The two schools were con-
solidated into one coeducational institution during the 1965-
66 academic year. Currently, the Kamehameha Schools oper-
ate K-12 campuses on three separate islands, Kapalama
(O‘ahu), Pukalani (Maui), and Kea‘au (Island of Hawai‘i),
enrolling more than 16,000 children annually. While the
Schools subsidize much of the educational costs through
funds held in trust, annual tuition remains at $1,784 for K-
12th grade students, with approximately sixty-five percent of
those enrolled receiving some form of financial aid.1
Pauahi’s will contains several instructions pertaining to the
1
With the forced sale of the Bishop trust lands under the Hawai‘i Land
Reform Act in the 1980s, see Haw. Hous. Auth. v. Midkiff, 467 U.S. 229
(1984), the Schools, which were previously “land rich and cash poor,”
suddenly had an abundance of working capital. The Bernice Pauahi
Bishop Estate is currently one of the world’s wealthiest charities, with an
estimated worth of $6 billion.
8928 DOE v. KAMEHAMEHA SCHOOLS
administration of the Kamehameha Schools, none of which
establish race as an admissions criteria. She directs that all
students attending the Kamehameha Schools should be pro-
vided “first and chiefly a good education in the common
English branches, and also instruction in morals and in such
useful knowledge as may tend to make good and industrious
men and women” and, in addition, that “the teachers of said
schools shall forever be persons of the Protestant religion.”
Pauahi Bishop Will at 18-19. See also Kamehameha Sch./
Bishop Estate, 990 F.2d at 461 (concluding that the Schools
do not fall within any of the three religious exemptions pro-
vided in Title VII and, therefore, the failure to consider a non-
Protestant teacher on account of her religion was discrimina-
tory). She further instructs that a portion of the trust’s annual
income should be devoted “to the support and education of
orphans, and others in indigent circumstances, giving the pref-
erence to Hawaiians of pure or part aboriginal blood.” Pauahi
Bishop Will at 18. While this racial preference is expressly
listed as a criterion for the administration of estate resources
charitably directed to orphans and indigents, the Will is nota-
bly devoid of any mention of race as a criterion for admission
into the Kamehameha Schools. As the Schools’ 1885 Pro-
spectus observed: “The noble minded Hawaiian chiefess who
endowed the Kamehameha Schools, put no limitations of race
or condition on her general bequest. Instruction will be given
only in English language, but The Schools will be opened to
all nationalities.”2
Rather than institute race as an admissions prerequisite,
Pauahi left to her Trustees the discretion “to regulate the
admission of pupils” and “to make all such rules and regula-
2
Similarly, in a February 11, 1897 letter, Charles Bishop noted: “There
is nothing in the will of Mrs. Bishop excluding white boys or girls from
the Schools . . . .” In a February 20, 1901 letter he further stated: “Accord-
ing to the reading of Clause 13 on Page 8 of the Will as published, the
preference to Hawaiians of pure or part aboriginal blood, applies only to
education of orphans and others in indigent circumstances.”
DOE v. KAMEHAMEHA SCHOOLS 8929
tions as they may deem necessary for the government” of the
Kamehameha Schools. Pauahi Bishop Will at 18. The original
trustees determined, however, that it was Pauahi’s intent to
prefer students of native Hawaiian ancestry. Specifically, the
policy articulated by Charles Bishop was that “boys and girls
of pure or part aboriginal blood . . . should have preference;
that is[,] they should have the first right.” Accordingly, the
admissions process at Kamehameha currently proceeds in two
phases: first, the applicant must demonstrate that he possesses
the minimum qualifications necessary to meet the Schools’
rigorous academic standards and, second, he must complete
an “Ethnic Ancestry Survey” designed to verify his aboriginal
blood. The Schools forthrightly admit that as long as there are
qualified students who possess at least some native Hawaiian
ancestry, they will be admitted before even the most qualified
of those who lack aboriginal blood. It is this “Hawaiians first”
admissions policy that motivates the instant controversy.
The plaintiff-appellant, John Doe, twice sought admission
to the Kamehameha Schools and, having met the academic
requirements for admission, was twice determined to be a
“competitive applicant.” After completing the Ethnic Ances-
try Survey, in which he acknowledged that he possessed no
aboriginal blood, his application was each time, as expected,
denied. Still desiring to attend the Kamehameha Schools, Doe
filed suit alleging that the Schools’ admissions policy violates
42 U.S.C. § 1981, as amended by the Civil Rights Act of
1991, Pub. L. No. 102-166, 105 Stat. 1071. Concluding that
the admissions policy constituted a valid race-conscious
remedial affirmative action program, the district court entered
summary judgment in favor of the Kamehameha Schools and
the Bernice Pauahi Bishop Estate. Doe v. Kamehameha Sch./
Bernice Pauahi Bishop Estate, 295 F. Supp. 2d 1141, 1172
(D. Haw. 2003). This appeal followed.
II
Before proceeding to analyze the question presented in this
appeal, it is worth clarifying those which are not. Specifically,
8930 DOE v. KAMEHAMEHA SCHOOLS
the Kamehameha Schools does not contest, and candidly
admits, that its admissions process is based upon an express
racial classification. Cf. Rice v. Cayetano, 528 U.S. 495, 514
(2000) (“Ancestry can be a proxy for race.”). The School does
not attempt to justify its admissions policy by appealing to a
First Amendment right to freedom of association, see Runyon
v. McCrary, 427 U.S. 160, 176 (1976) (“Invidious private dis-
crimination may be characterized as a form of exercising free-
dom of association protected by the First Amendment, but it
has never been accorded affirmative constitutional protec-
tions.”); nor does it explicitly argue for a relaxed level of
scrutiny by appealing to the political nature of classifications
premised on membership in a federally recognized Indian
tribe. See Morton v. Mancari, 417 U.S. 535 (1974) (upholding
a Bureau of Indian Affairs hiring preference for Native Amer-
icans under rational basis scrutiny due to the unique relation-
ship between the federal government and members of
federally recognized Indian tribes). See also Rice, 528 U.S. at
518 (declining to extend Mancari to uphold a race-based vot-
ing restriction for native Hawaiians absent “some beginning
premises not yet established in [the Court’s] case law”;
namely, that Congress “has determined that native Hawaiians
have a status like that of Indians in organized tribes”). We are,
likewise, not presented with a challenge to the racially dis-
criminatory admissions policy of a public school or a school
which accepts federal funding. See, e.g., Gratz v. Bollinger,
539 U.S. 244, 275-76 & n.23 (2003) (applying strict scrutiny
to a racial preference challenged under the Equal Protection
Clause); Grutter v. Bollinger, 539 U.S. 306, 343 (2003)
(same).
Instead, we are confronted with a question of statutory ori-
gin: whether a private school, receiving no federal funds, may
legitimately restrict admission to those of the native Hawaiian
race. In other words, does the Kamehameha Schools’ “Hawai-
ians first” admissions policy constitute invidious discrimina-
tion in violation of § 1981? The district court concluded that
it does not. Because the issue is one of law, we review that
DOE v. KAMEHAMEHA SCHOOLS 8931
decision de novo. See, e.g., Desir v. Ilchert, 840 F.2d 723, 726
(9th Cir. 1988) (stating that “questions concerning the
requirements of the applicable statutes . . . are questions of
law, which we review de novo”) (internal quotation marks
omitted).
III
[1] Because the Kamehameha Schools admits that its
admissions process is premised upon an express racial classi-
fication, we must first identify the standard of scrutiny that
should be applied to proffered justifications for the racially
discriminatory program. Two obvious contenders exist: strict
scrutiny, such as that used to analyze challenges brought
under the Fourteenth Amendment’s Equal Protection Clause;
or the more deferential form of scrutiny employed to resolve
challenges brought pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000(e) et seq. (2004).
If strict scrutiny applies to the plaintiff’s § 1981 challenge,
the Schools must demonstrate that its admissions program is
a “narrowly tailored measure[ ] that further[s] compelling
governmental interests.” Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995). On the other hand, if Title VII
scrutiny applies to this § 1981 suit, the Schools must merely
“present evidence that the plaintiff was rejected, or the other
applicant was chosen, for a legitimate nondiscriminatory rea-
son.” Patterson v. McLean Credit Union, 491 U.S. 164, 187
(1989) (emphasis added).
The plaintiff-appellant argues that strict scrutiny is the only
method of review sufficiently rigorous to enforce the substan-
tive commands of § 1981. He urges that although the McDon-
nell Douglas burden-shifting framework and order of proof is
frequently applied to § 1981 suits, Title VII’s substantive
legal standards are inapplicable in this context. See McDon-
nell Douglas Corp. v. Green, 411 U.S. 792 (1973). We dis-
8932 DOE v. KAMEHAMEHA SCHOOLS
agree. To explain our disagreement, a brief preliminary
discussion of the complicated history of § 1981 is useful.
A
Section 1981 was originally enacted pursuant to section
two of the Thirteenth Amendment as part of the Civil Rights
Act of 1866. Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27.
“The principal object of the legislation was to eradicate the
Black Codes, laws enacted by Southern legislatures imposing
a range of civil disabilities on freedmen.” Gen. Bldg. Contrac-
tors Ass’n v. Pennsylvania, 458 U.S. 375, 386 (1982). Section
1 of the Civil Rights Act provided:
That all persons born in the United States and not
subject to any foreign power, excluding Indians not
taxed, are hereby declared to be citizens of the
United States; and such citizens, of every race and
color, without regard to any previous condition of
slavery or involuntary servitude, except as a punish-
ment for crime whereof the party shall have been
duly convicted, shall have the same right, in every
State and Territory in the United States, to make and
enforce contracts, to sue, be parties, and give evi-
dence, to inherit, purchase, lease, sell, hold, and con-
vey real and personal property, and to full and equal
benefit of all laws and proceedings for the security
of person and property, as is enjoyed by white citi-
zens, and shall be subject to like punishment, pains,
and penalties, and to none other, any law, statute,
ordinance, regulation, or custom, to the contrary not-
withstanding.
14 Stat. 27. In response to concerns over whether the Thir-
teenth Amendment authorized such broad legislation, it was
later reenacted, after passage of the Fourteenth Amendment,
in the Enforcement Act of 1870, sometimes referred to as the
Civil Rights Act of 1870. Act of May 31, 1870, ch. 114,
DOE v. KAMEHAMEHA SCHOOLS 8933
§§ 16, 18, 16 Stat. 144. See also Hurd v. Hodge, 334 U.S. 24,
32-33 (1948) (noting that some members of Congress sup-
ported the Fourteenth Amendment “in order to eliminate
doubt as to the constitutional validity of the Civil Rights Act
[of 1866] as applied to the States”); Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 436 (1968) (same). The Enforcement Act
contained two sections which had very similar effect. Section
18 simply reenacted, literally, § 1 of the 1866 Act:
And be it further enacted, That the act to protect all
persons in the United States in their civil rights, and
furnish the means of their vindication, passed April
nine, eighteen hundred and sixty-five, is hereby re-
enacted; and sections sixteen and seventeen hereof
shall be enforced according to the provisions of said
act.
16 Stat. 141, 144 (1870). In addition, the new § 16 enacted
much of the substance of the 1866 Act:
And be it further enacted, That all persons within the
jurisdiction of the United States shall have the same
right in every State and Territory in the United States
to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all
laws and proceedings for the security of person and
property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and none
other, any law, statute, ordinance, regulation or cus-
tom to the contrary notwithstanding. No tax or
charge shall be imposed or enforced by any State
upon any person immigrating thereto from a foreign
country which is not equally imposed and enforced
upon every person immigrating to such State from
any other foreign country; and any law of any State
in conflict with this provision is hereby declared null
and void.
8934 DOE v. KAMEHAMEHA SCHOOLS
16 Stat. 141, 144 (1870). Section 16 differed from § 1 of the
1866 Act in at least two respects. First, where § 1 of the 1866
Act extended its guarantees to “citizens, of every race and
color,” § 16 of the 1870 Act protected “all persons.” See
United States v. Wong Kim Ark, 169 U.S. 649, 675 (1898);
Sagana v. Tenorio, 384 F.3d 731, 737 (9th Cir. 2004), cert.
denied, 125 S. Ct. 1313 (2005). Second, § 16 of the 1870 Act
omitted language contained in the 1866 Act guaranteeing
property rights equivalent to those enjoyed by white citizens;
this language was reenacted separately in what is now 42
U.S.C. § 1982. In 1874 federal statutory law was codified.
Section 1977 of the Revised Code of 1874 is identical with
the present § 1981(a), which is prefaced by the caption “Equal
rights under the law,” and provides the following:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal ben-
efit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penal-
ties, taxes, licenses, and exactions of every kind, and
to no other.
42 U.S.C. § 1981(a).
Immediately following its passage, what is now § 1981
underwent nearly a century of desuetude during which debate
regarding its scope and meaning was generally subsumed by
the controversy surrounding the newly ratified Fourteenth
Amendment’s Equal Protection Clause. Partially owing to lin-
gering uncertainty regarding the scope of the statute and the
extent of Congress’s authority to prohibit discrimination
divorced from state action, § 1981 would not gain indepen-
dent significance until the late 1960s. See, e.g., Hurd, 334
U.S. at 31 (declaring that “governmental action” was required
in a suit based on the Civil Rights Act of 1866); The Civil
DOE v. KAMEHAMEHA SCHOOLS 8935
Rights Cases, 109 U.S. 3, 24-25 (1883) (invalidating the pub-
lic accommodation provisions of the Civil Rights Act of 1875
as beyond Congress’s power to enforce either the Thirteenth
or Fourteenth Amendments). With two decisions, however,
the Supreme Court did for § 1981 what Monroe v. Pape, 365
U.S. 167 (1961), did for 42 U.S.C. § 1983: clarify and resur-
rect the statute from its prior existence, merely as a device to
augment the remedies for previously recognized forms of dis-
crimination, to a litigation tool in its own right with unparal-
leled theoretical coverage. See Runyon, 427 U.S. at 170;
Jones, 392 U.S. at 423.
In Jones, the Court interpreted a companion statute, 42
U.S.C. § 1982, to encompass and prohibit racial discrimina-
tion in purely private transactions. 392 U.S. at 423-24. The
Court held that the right conferred by § 1982 — the same
right to “inherit, purchase, lease, sell, hold, and convey real
and personal property” as is enjoyed by white citizens — is
secured against interference from both governmental and pri-
vate actions. Id. (“[W]hen Congress provided in § 1 of the
Civil Rights Act that the right to purchase and lease property
was to be enjoyed equally throughout the United States by
Negro and white citizens alike, it plainly meant to secure that
right against interference from any source whatever, whether
governmental or private.”). Thus, relying on the legislative
history of § 1 of the Civil Rights Act of 1866, the Court con-
cluded that Congress intended to prohibit “all racial discrimi-
nation, private and public, in the sale . . . of property,” id. at
437, and, further, that this prohibition was within Congress’s
power under section two of the Thirteenth Amendment “ratio-
nally to determine what are the badges and the incidents of
slavery, and . . . to translate that determination into effective
legislation.” Id. at 440. Eight years later, in Runyon, the Court
explicitly found the same result dictated under § 1981.
Runyon involved a challenge to two private schools’ admis-
sions programs which categorically excluded African-
American students. 427 U.S. at 170. Although the schools
8936 DOE v. KAMEHAMEHA SCHOOLS
received no federal or state aid of any kind, their services
“were advertised and offered to members of the general pub-
lic.” Id. at 172. Relying on Jones and two other recent cases,
see Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-
60 (1975); Tillman v. Wheaton-Haven Recreation Ass’n, 410
U.S. 431, 439-40 (1973), the Court concluded that an individ-
ual’s § 1981 right “to make and enforce contracts” is violated
if a private offeror refuses to extend him “the same opportu-
nity to enter into contracts” that he extends to white offerees,
solely on the basis of his race. Runyon, 427 U.S. at 170-71.
According to the Court, the schools’ racially exclusive admis-
sions policies constituted “a classic violation of § 1981.” Id.
at 172. The Court found that since it is derived from both the
Acts of 1866 and 1870, § 1981 validly reaches private, as well
as public, racial discrimination based upon Congress’s Thir-
teenth Amendment powers. Id. at 168 n.8, 179 (“Section
1981, as applied to the conduct at issue here, constitutes a[ ]
[valid] exercise of federal legislative power under § 2 of the
Thirteenth Amendment . . . .”).
Thus, together, and more than one hundred years after
§ 1981’s passage, Jones and Runyon finally dispensed with
the state action requirement and held that the Civil Rights Act
of 1866 reached purely private acts of discrimination by vir-
tue of Congress’s power under section two of the Thirteenth
Amendment. How far the Thirteenth Amendment enforce-
ment power and the doctrine of Runyon extended, however,
remained open.
In the same term that it decided Runyon, the Court held that
§ 1981 prohibits racial discrimination in private employment
against white persons as well as nonwhite persons. McDonald
v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295 (1976)
(“Th[e] cumulative evidence of congressional intent makes
clear, we think, that the 1866 statute, designed to protect the
‘same right . . . to make and enforce contracts’ of ‘citizens of
every race and color’ was not understood or intended to be
reduced . . . to the protection solely of nonwhites.”). McDon-
DOE v. KAMEHAMEHA SCHOOLS 8937
ald involved a claim by two white employees of the Santa Fe
Trail Transportation Company who were accused of misap-
propriating company property; the company had also accused
an African-American employee of the same offense. Shortly
thereafter, the two white employees were fired, but the
African-American employee was not. Believing their termina-
tion to be racially-based, the two white employees filed suit
under Title VII of the Civil Rights Act of 1964 and § 1981
alleging unlawful employment discrimination. To resolve the
dispute, the Court had to address whether § 1981 encom-
passed discrimination against white persons. Reasoning that
Congress’s broad language evinced an intent “to proscribe
discrimination in the making or enforcement of contracts
against, or in favor of, any race,” the Court observed:
Unlikely as it might have appeared in 1866 that
white citizens would encounter substantial racial dis-
crimination of the sort proscribed under the Act, the
statutory structure and legislative history persuade us
that the 39th Congress was intent upon establishing
in the federal law a broader principle than would
have been necessary simply to meet the particular
and immediate plight of the newly freed Negro
slaves.
Id. at 295-96.
Without clarifying the source of Congress’s power to enact
a law that prohibited private race discrimination against
whites, the Court in McDonald declined to restrict § 1981 to
claims only by African-Americans. By avoiding the constitu-
tional questions implicated by its broad reading of the statute,
the Court left unresolved whether Congress’s power to pro-
hibit discrimination against white persons in private employ-
ment also emanated from § 1981’s Thirteenth Amendment
origins or whether it might be based on some other source;
particularly, Congress’s power under the Commerce Clause.
Because the Santa Fe Trail Transportation Company was also
8938 DOE v. KAMEHAMEHA SCHOOLS
subject to the requirements of Title VII — a statute whose
capacity to regulate private conduct has been squarely located
in the Commerce Clause, see 42 U.S.C. § 2000a; United
Steelworkers of Am. v. Weber, 443 U.S. 193, 206 n.6 (1979)
(“Title VII . . . was enacted pursuant to the commerce power
to regulate purely private decisionmaking”) — it is question-
able whether we can read McDonald as recognizing the Thir-
teenth Amendment as the source of Congress’s power to
prohibit all private discrimination against whites. Nonethe-
less, later cases have assumed, without discussion, that Con-
gress does possess the power to prohibit a private school from
discriminating against non-African-Americans on the basis of
race. See, e.g., Saint Francis Coll. v. Al-Khazraji, 481 U.S.
604, 609-10 (1987) (permitting suit under § 1981 by professor
of Arabian ancestry against a private university); cf. Gen.
Bldg. Contractors, 458 U.S. at 390 n.17 (“We need not decide
whether the Thirteenth Amendment itself . . . accomplished
anything more than the abolition of slavery.”); City of Mem-
phis v. Greene, 451 U.S. 100, 125-26 (1981) (leaving open
the question of whether § 1 of the Thirteenth Amendment did
anything more than abolish slavery). Whether it stems from
a broad reading of section two of the Thirteenth Amendment,
or a similarly broad reading of the Commerce Clause, Con-
gress’s power to prohibit private race discrimination has not
yet been seriously questioned.3
3
The parties have not contested the constitutionality of § 1981 as
applied to the discriminatory admissions policy in place at the Kameha-
meha Schools. Although we note the constitutional questions that are
implicated, we decline to restrict McDonald to its context, in part, because
of the alternative constitutional concerns that a “racial minorities only”
reading of § 1981 would raise. See, e.g., Adarand, 515 U.S. at 227 (“[A]ll
racial classifications, imposed by whatever federal, state, or local govern-
mental actor, must be analyzed by a reviewing court under strict scruti-
ny.”); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 367 (1978)
(Brennan, J., concurring in the judgment in part and dissenting in part)
(“To the extent that Congress acted under the Commerce Clause power,”
when enacting Title VII, “it was restricted in the use of race in govern-
mental decisionmaking by the equal protection component of the Due Pro-
DOE v. KAMEHAMEHA SCHOOLS 8939
After Jones, Runyon and McDonald, the theoretical cover-
age of § 1981 appeared almost limitless. In the cases that fol-
lowed, however, the Court endeavored to define the outer
bounds of, as well as the burdens of proof applicable to,
§ 1981 race discrimination claims. In General Building Con-
tractors, the Court emphasized the statute’s Fourteenth
Amendment origins to hold “that § 1981, like the Equal Pro-
tection Clause, can be violated only by purposeful discrimina-
tion.” 458 U.S. at 391. The Court’s decision foreclosed claims
premised on disparate impact, claims which are actionable
under Title VII. See Griggs v. Duke Power Co., 401 U.S. 424,
431 (1971).
Seven years later, the Court revisited the relationship
between Title VII and § 1981. In Patterson v. McLean Credit
Union, an African-American former employee of the McLean
Credit Union brought a § 1981 suit against her employer,
claiming racial harassment, failure to promote, and discharge
on account of her race. 491 U.S. 164 (1989), superseded by
statute on other grounds as stated in Estate of Reynolds v.
Martin, 985 F.2d 470, 475 n.2 (9th Cir. 1993). The district
court determined that a claim for racial harassment is not
actionable under § 1981, and the court of appeals affirmed.
The Supreme Court granted certiorari, in part, to decide
whether a claim for racial harassment “falls within one of the
enumerated rights protected by § 1981.” Id. at 176.4 The
cess Clause of the Fifth Amendment”). Accordingly, and until either
Congress or the Supreme Court indicates otherwise, we assume for pur-
poses of our remaining analysis that Congress possesses the constitutional
authority to prohibit race discrimination both against and in favor of white
persons in private schools.
4
After oral argument, however, the Court requested the parties to brief
and argue an additional question: “Whether or not the interpretation of 42
U.S.C. § 1981 adopted by [the] Court in Runyon v. McCrary, 427 U.S. 160
(1976), should be reconsidered.” Patterson v. McLean Credit Union, 485
U.S. 617, 617 (1988) (per curiam). See also Patterson, 491 U.S. at 170-
171. Concluding that no special justification warranting a departure from
the doctrine of stare decisis had been shown, the Court declined to over-
rule Runyon. Id. at 175 (“We decline to overrule Runyon and acknowledge
that its holding remains the governing law in this area.”).
8940 DOE v. KAMEHAMEHA SCHOOLS
Court held that it does not; rather, § 1981 is limited by its
terms to prohibiting discrimination in the making and enforc-
ing of contracts, and does not extend to “postformation con-
duct,” or problems that may arise later from the terms and
conditions of continuing employment. Id. at 177-80. Examin-
ing the petitioner’s failure-to-promote claim, the Court con-
cluded that the district court erred by instructing the jury that
the petitioner had to prove that she was better qualified than
the white employee who allegedly received the promotion. Id.
at 186. Drawing from Title VII case law, the Court took this
opportunity to clarify the framework for analyzing a § 1981
claim against a private employer:
We have developed, in analogous areas of civil
rights law, a carefully designed framework of proof
to determine, in the context of disparate treatment,
the ultimate issue whether the defendant intention-
ally discriminated against the plaintiff. See Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248
(1981); McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). We agree with the Court of
Appeals that this scheme of proof, structured as a
“sensible, orderly way to evaluate the evidence in
light of common experience as it bears on the critical
question of discrimination,” Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577 (1978), should
apply to claims of racial discrimination under
§ 1981.
Id. at 186. Having imported Title VII’s McDonnell Douglas
order of proof, the Court elaborated to explain, in detailed
fashion, the specific evidentiary showings required:
Under our well-established framework, the plaintiff
has the initial burden of proving, by a preponderance
of the evidence, a prima facie case of discrimination.
. . . Once the plaintiff establishes a prima facie case,
an inference of discrimination arises. In order to
DOE v. KAMEHAMEHA SCHOOLS 8941
rebut this inference, the employer must present evi-
dence that the plaintiff was rejected, or the other
applicant was chosen, for a legitimate nondiscrimi-
natory reason. . . . At this point, as our prior cases
make clear, petitioner retains the final burden of per-
suading the jury of intentional discrimination.
Although petitioner retains the ultimate burden of
persuasion, our cases make clear that she must also
have the opportunity to demonstrate that respon-
dent’s proffered reasons for its decision were not its
true reasons.
Id. at 186-87 (internal quotation marks, citations and footnote
omitted) (emphasis added).
[2] We find this treatment particularly instructive because
the Court’s discussion appears to approve the use of, in the
arena of § 1981 employment discrimination claims, not only
the McDonnell Douglas order of proof, but also the nature of
the proof that a private defendant in a Title VII action is
required to adduce. See also Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581, 617 n.1 (1999) (Thomas, J., dissenting) (“This
Court has applied the ‘framework’ developed in Title VII
cases to claims brought under [§ 1981].”) (citing Patterson,
491 U.S. at 186); Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 69 (2d Cir. 2000) (analogizing a § 1981
claim to a Title VII claim); Brown v. Am. Honda Motor Co.,
939 F.2d 946, 949 (11th Cir. 1991) (“[T]he test for intentional
discrimination in suits under § 1981 is the same as the formu-
lation used in Title VII discriminatory treatment causes. . . .
[T]he defendant must come forward with evidence demon-
strating legitimate, nondiscriminatory reasons for its con-
duct.”). While the Court could have suggested that a § 1981
defendant must demonstrate that race-based action is nar-
rowly tailored to further a compelling governmental interest,
see, e.g., Adarand, 515 U.S. at 227, it stated instead that the
employer must show merely “that the plaintiff was rejected,
or the other applicant was chosen, for a legitimate nondis-
8942 DOE v. KAMEHAMEHA SCHOOLS
criminatory reason,” Patterson, 491 U.S. at 187 (emphasis
added).
The appellant aptly notes that use of the McDonnell Doug-
las burden-shifting framework does not necessarily, or even
usually, signify that Title VII’s substantive standard of scru-
tiny — in particular, the requirement that the defendant “pre-
sent evidence that the plaintiff was rejected . . . for a legiti-
mate nondiscriminatory reason” — also governs. Patterson,
491 U.S. at 187 (emphasis added). The appellant points out
that at least one court has made the McDonnell Douglas
burden-shifting framework available to plaintiffs who must
prove intentional discrimination in order to make out a viola-
tion of the Equal Protection Clause. See English v. Colo.
Dep’t of Corr., 248 F.3d 1002, 1007 (10th Cir. 2001)
(employing the McDonnell Douglas framework to analyze
§ 1983 claim alleging a violation of the Equal Protection
Clause by the Colorado Department of Corrections); cf. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993)
(assuming, absent objection from the parties, that it was per-
missible for the lower court to apply the McDonnell Douglas
framework to the plaintiff’s equal protection claim as well as
his Title VII claim); Fed. Deposit Ins. Corp. v. Henderson,
940 F.2d 465, 472 & n.14 (9th Cir. 1991) (declining to decide
whether McDonnell Douglas is the appropriate framework for
analyzing an equal protection claim). Nonetheless, the Patter-
son Court specifically found that the district court, while cor-
rectly recognizing that the Title VII “scheme of proof should
apply in § 1981 cases,” erred in “describing the petitioner’s
burden.” Patterson, 491 U.S. at 186. We find the Court’s
complete description of the burden — setting forth both the
order of proof and the nature of the proof required — to be
the best indication from the Supreme Court as to how lower
courts should shape the contours of a § 1981 challenge to a
private entity’s racially discriminatory practice.
In the Civil Rights Act of 1991, Congress amended the stat-
ute specifically to overrule Patterson’s holding that § 1981
DOE v. KAMEHAMEHA SCHOOLS 8943
does not extend to postformation conduct. See 42 U.S.C.
§ 1981(b) (defining the phrase “make and enforce contracts”
to include “the making, performance, modification, and termi-
nation of contracts, and the enjoyment of all benefits, privi-
leges, terms and conditions of the contractual relationship”).
The amended statute also clarified any residual doubt as to
Congress’s intention that § 1981 apply to private discrimina-
tion: “[t]he rights protected by this section are protected
against impairment by nongovernmental discrimination.” 42
U.S.C. § 1981(c). Importantly, nothing in the amended statute
calls into question Patterson’s discussion of the McDonnell
Douglas proof structure or the nature of proof required in a
§ 1981 suit against a private entity.
[3] Although the question has never been squarely presented,5
we read the Court’s decisions both in Patterson and in Gen-
eral Building Contractors to indicate a willingness to look to
the Fourteenth Amendment as a means for restricting liability
to the types of racially motivated practices that led Congress
to enact § 1981 — namely, intentional discrimination on the
basis of race — but to look to Title VII jurisprudence to clar-
ify the order and nature of the proof. See also City of
5
Before Patterson the decisions of our court frequently assumed, with-
out discussion, that both the nature and the order of proof applicable to
Title VII claims also applied to claims brought under § 1981. See Jurado
v. Eleven-Fifty Corp., 813 F.2d 1406, 1412 (9th Cir. 1987) (“The same
standards apply [to claims brought under Title VII and those brought
under § 1981], and facts sufficient to give rise to a Title VII claim are also
sufficient for a section 1981 claim.”); EEOC v. Inland Marine Indus., 729
F.2d 1229, 1233 n.7 (9th Cir. 1984) (“A plaintiff must meet the same stan-
dards in proving a § 1981 claim that he must meet in establishing a . . .
claim under Title VII[.]”). See also Berger v. Iron Workers Reinforced
Rodmen Local 201, 843 F.2d 1395, 1412 n.7 (D.C. Cir.) (per curiam)
(“The standards and order of proof in section 1981 cases have been held
to be identical to those governing Title VII disparate treatment cases.”),
clarified on reh’g, 852 F.2d 619 (D.C. Cir. 1988). We have never explic-
itly considered whether Title VII’s requirement that the defendant come
forward with a “legitimate nondiscriminatory reason” also applies in the
§ 1981 context.
8944 DOE v. KAMEHAMEHA SCHOOLS
Memphis, 451 U.S. at 126 (finding § 1982 inapplicable where
“the record discloses no racially discriminatory motive” but
instead “demonstrates that the interests that did motivate the
[defendant] are legitimate”).
Contrary to the appellant’s argument, we do not find the
Court’s recent decisions in the “Michigan Affirmative Action
Cases” relevant to our analysis. See Grutter, 539 U.S. at 343
(concluding that the University of Michigan Law School’s
admissions program satisfied strict scrutiny under the Equal
Protection Clause and, therefore, that it also satisfied Title VI
and § 1981); Gratz, 539 U.S. at 275-76 n.23 (concluding that
the University of Michigan’s undergraduate admissions pro-
gram failed strict scrutiny under the Equal Protection Clause
and, therefore, that it also violated Title VI and § 1981). Aside
from the fact that both cases involved a challenge to a public
university’s use of racial preferences in admissions, neither
case presented the Court with an occasion to address, at any
length, the appropriate standard of scrutiny for a § 1981 chal-
lenge. Because the preference in Grutter satisfied strict scru-
tiny, it necessarily would satisfy a lower standard; as the
preference in Gratz failed strict scrutiny, the invalidity of the
university’s admissions program rendered it unnecessary for
the Court to consider whether it could satisfy a lower standard.6
The appellant relies, however, on the Court’s citation, in
Grutter, to General Building Contractors, which is followed
by the parenthetical note, “the prohibition against discrimina-
tion in § 1981 is co-extensive with the Equal Protection
Clause.” Grutter, 539 U.S. at 343 (citing Gen. Bldg. Contrac-
tors, 458 U.S. at 389-91). The Court in Gratz similarly
dropped a footnote citing General Building Contractors for
the proposition that “purposeful discrimination that violates
6
We find our recent decision in Sagana inapplicable for the same reason
that we find the Supreme Court’s decision in Grutter irrelevant to the facts
of this appeal. See Sagana, 384 F.3d at 743 (concluding that a challenged
governmental employment policy that satisfied Fourteenth Amendment
scrutiny necessarily also satisfied scrutiny under § 1981).
DOE v. KAMEHAMEHA SCHOOLS 8945
the Equal Protection Clause of the Fourteenth Amendment
will also violate § 1981.” Gratz, 539 U.S. at 276 n.23 (citing
Gen. Bldg. Contractors, 458 U.S. at 389-90). See also
Sagana, 384 F.3d at 743.
Mindful of the inherent dangers of according undue weight
to isolated statements from decisions not directly on point, we
read these parenthetical notes simply as recognizing that both
the Equal Protection Clause and § 1981 require a showing of
intentional discrimination; they are co-extensive on this point.
The Court’s decision in Patterson incorporated this holding,
seven years after General Building Contractors, when it
instructed lower courts to apply the McDonnell Douglas
framework to claims of racial discrimination in employment
brought under § 1981, while noting that the “petitioner retains
the final burden of persuading the jury of intentional discrimi-
nation.” Patterson, 491 U.S. at 187 (emphasis added). Simply
put, the Supreme Court’s parenthetical notations in Grutter
and Gratz should be read in light of the specific import of the
cited case, and General Building Contractors does nothing
more than specify that intentional discrimination must be
established in order to sustain both an equal protection and a
§ 1981 challenge. Although, like the Fourteenth Amendment,
§ 1981 reaches only intentional discrimination, § 1981 is not
otherwise co-extensive with the Equal Protection Clause.
From the historical context in which it was passed as well
as the cases interpreting its command, we are persuaded that
§ 1981, like Title VII, “was not intended to incorporate and
particularize the commands of the Fifth and Fourteenth
Amendments,” Weber, 443 U.S. at 206 n.6, nor was it
intended to apply those commands to private sector discrimi-
nation. For this reason, we conclude that § 1981 should not be
read in pari materia with the Fourteenth Amendment to
require the application of strict scrutiny to all private race-
based preferences. See id. (declining to read Title VII and
Title VI in pari materia); Johnson, 480 U.S. at 630 n.8 (not-
ing Congress’s “desire to preserve a relatively large domain
8946 DOE v. KAMEHAMEHA SCHOOLS
for voluntary employer action”). In sum, having generally
abandoned, after Runyon and Jones, the Fourteenth Amend-
ment as the model for interpreting, and limiting the reach of,
§§ 1981 and 1982, we conclude that the substantive standards
embodied in modern civil rights laws better capture the juris-
prudence of § 1981.
[4] Although the instant case involves a § 1981 claim
against a private school, we find no reason to depart from the
standards outlined in Patterson and well-established in the
cases interpreting Title VII. While the analysis necessarily
must be modified in order to account for differences of con-
text, the substantive guarantee should remain the same: the
right to make and enforce contracts free from illegitimate and
unlawful discrimination on the basis of race. Accordingly, we
hold that a § 1981 suit against a purely private school is gov-
erned by the substantive standards applicable to race-based
challenges brought pursuant to Title VII of the Civil Rights
Act of 1964. This means that once the § 1981 plaintiff estab-
lishes a prima facie case of intentional race discrimination, the
defendant must come forward with a legitimate nondiscrimi-
natory reason justifying the challenged practice; if such a rea-
son is offered the plaintiff may still attempt to show that the
reason is a pretext for unlawful race discrimination.
It remains to clarify how these standards should operate in
the context of private education.
B
Under the proof structure and accompanying substantive
standards that we now import, the complainant in a § 1981
suit against a purely private school must carry the initial bur-
den of establishing a prima facie case of racial discrimination.
See McDonnell Douglas, 411 U.S. at 802.7 Where an explicit
7
As is true with respect to the application of the McDonnell Douglas
proof structure in the context of Title VII employment discrimination
DOE v. KAMEHAMEHA SCHOOLS 8947
race-based admissions policy exists, proof of this fact alone
is sufficient to establish a prima facie case.
If the plaintiff proves his prima facie case, a rebuttable pre-
sumption of intentional discrimination arises, see Tex. Dep’t
of Comty. Affairs v. Burdine, 450 U.S. 248, 254 (1981), and
the burden of production shifts to the school to articulate a
legitimate nondiscriminatory reason for its admissions policy.
See McDonnell Douglas, 411 U.S. at 802. See also Burdine,
450 U.S. at 255-56. If the school satisfies this burden, the bur-
den of production again shifts to the plaintiff to prove that the
school’s articulated reason is a pretext for unlawful race dis-
crimination. See Hicks, 509 U.S. at 515-16; McDonnell Doug-
las, 411 U.S. at 804. Despite the shifting burdens, the ultimate
burden of persuasion that the school intentionally discrimi-
nated on the basis of race remains with the plaintiff at all
times. Hicks, 509 U.S. at 507.
We turn, next, to the task of applying these standards to the
plaintiff-appellant’s § 1981 challenge to the racially exclu-
sionary admissions policy in place at the Kamehameha
Schools.
IV
It is undisputed that the Kamehameha Schools employs an
express racial classification designed to deny admission to all
students possessing no aboriginal blood, so long as qualified
native Hawaiian applicants seek admission in sufficient num-
ber to fill the positions.8 Accordingly, the issue becomes
claims, the elements of a prima facie case will vary depending on the par-
ticular facts involved. See McDonald, 427 U.S. at 279 n.6 (“ ‘specification
. . . of the prima facie proof required . . . is not necessarily applicable in
every respect to differing factual situations’ ”) (quoting McDonnell Doug-
las, 411 U.S. at 802 n.13).
8
Appellees argue that the racial preference is not an absolute bar to the
admission of non-Hawaiians because if spaces exceed the number of qual-
8948 DOE v. KAMEHAMEHA SCHOOLS
whether the Schools can articulate a legitimate nondiscrimina-
tory reason justifying this racial preference. Toward this end,
the Schools urge that its policy constitutes a valid affirmative
action plan rationally related to redressing present imbalances
in the socioeconomic and educational achievement of native
Hawaiians, producing native Hawaiian leadership for commu-
nity involvement, and revitalizing native Hawaiian culture.
[5] The Supreme Court has held that Title VII’s prohibition
against racial discrimination “does not condemn all private,
voluntary, race-conscious affirmative action plans.” Weber,
443 U.S. at 208. Consequently, in the Title VII context, if the
challenged employment decision was made pursuant to such
a plan, the existence of an affirmative action plan itself can
form the basis of a legitimate nondiscriminatory rationale. See
Johnson, 480 U.S. at 626. We assume, absent objection from
the parties, that the same principle applies to a § 1981 suit
against a purely private school. See, e.g., Edmonson v. United
States Steel Corp., 659 F.2d 582, 584 (5th Cir. 1981) (per
curiam) (applying Title VII standards in the context of § 1981
employment discrimination challenge to race-conscious affir-
mative action plan); accord Setser v. Novack Inv. Co., 657
F.2d 962, 966-68 (8th Cir. 1981) (en banc), cert. denied, 454
U.S. 1064 (1981); cf. McDonald, 427 U.S. at 280 n.8 (declin-
ing to consider the permissibility, under § 1981, of an affirma-
tive action program).
[6] As a preliminary matter, we note that the plaintiff gen-
erally bears the burden of establishing the invalidity of an
ified native Hawaiian applicants, Kamehameha will admit non-Hawaiian
students. They point out that, in 2003, a non-Hawaiian student was admit-
ted to the Kamehameha Schools; a fact which, the record suggests, owed
more to accident than design as it prompted an immediate full-scale inves-
tigation and promise, on the part of School administrators, to ensure that
admission remained for native Hawaiians only. Whether or not the policy
is, in the abstract, an absolute bar to admission for those of the non-
preferred race, it certainly operates as one.
DOE v. KAMEHAMEHA SCHOOLS 8949
affirmative action plan challenged under Title VII. See John-
son, 480 U.S. at 626 (“If [an affirmative action] plan is articu-
lated as the basis for the [challenged employment] decision,
the burden shifts to the plaintiff to prove that the employer’s
justification is pretextual and the plan is invalid.”); cf. Hill v.
Ross, 183 F.3d 586, 590 (7th Cir. 1999) (noting that John-
son’s discussion of burdens was undermined by subsequent
decisions, but declining to decide whether it survived those
decisions); Bass v. Bd. of County Comm’rs, 256 F.3d 1095,
1115 (11th Cir. 2001) (same). We see no basis for a different
rule regarding a plan’s alleged violation of § 1981 in the con-
text of private education. Our remaining analysis, therefore,
will focus on determining whether the plaintiff-appellant has
met this burden.
A
The starting point for our analysis is the Court’s seminal
decision in United Steelworkers of America v. Weber, 443
U.S. 193 (1979). At issue in Weber was an affirmative action
plan collectively bargained by a union and an employer that
reserved for African-American employees fifty percent of the
openings in an in-plant craft training program. In ruling that
the challenged plan fell on the permissible side of the line
demarcating valid affirmative action plans from those which
violate the commands of Title VII, the Court observed that the
purpose of the plan mirrored that of Title VII: to “break down
old patterns of racial segregation and hierarchy” and to
“ ‘open employment opportunities for [minorities] in occupa-
tions which have been traditionally closed to them.’ ” Id. at
208 (citing and quoting 110 CONG. REC. 6548 (1964) (remarks
of Sen. Humphrey)). It emphasized that the plan did so with-
out “unnecessarily trammel[ing] the interests of the white
employees”; specifically, the plan did not “require the dis-
charge of white workers and their replacement with new black
hirees,” and did not “create an absolute bar to the advance-
ment of white employees.” Id. Finally, the Court noted that
“the plan is a temporary measure; it is not intended to main-
8950 DOE v. KAMEHAMEHA SCHOOLS
tain racial balance, but simply to eliminate a manifest racial
imbalance.” Id.9
While “[t]he Weber Court did not establish a rigid formula
for testing the validity of an affirmative action plan,” Johnson
v. Transp. Agency, 770 F.2d 752, 757 (9th Cir. 1984); see also
Setser, 657 F.2d at 969-70, later cases have used Weber as a
general guide for assessing the legality of affirmative action
plans challenged pursuant to Title VII. See, e.g., Johnson, 480
U.S. at 627 (“The assessment of the legality of the [affirma-
tive action plan in question] must be guided by our decision
in Weber.”); Local 28 of Sheet Metal Workers Int’l Ass’n v.
EEOC, 478 U.S. 421, 479 (1986) (applying Weber and find-
ing that a court-imposed union membership goal and fund
established to increase minority enrollment, which did not
“require any member of the union to be laid off,” “discrimi-
nate against existing union members,” nor bar admission of
white applicants to the union, did not “unnecessarily tram-
mel[ ] the interests of white employees”). We are persuaded
that these general principles may be rationally applied in the
context of private education, with certain modifications to
account for the differences of context.
[7] We recently distilled the Court’s analysis in Weber into
three distinct requirements: affirmative action plans must (1)
respond to a manifest imbalance in its work force; (2) not
“ ‘create[ ] an absolute bar to the[ ] advancement’ ” of the
non-preferred race or “ ‘unnecessarily trammel[ ]’ ” their
rights; and (3) do no more than is necessary to achieve a bal-
ance. Rudebusch v. Hughes, 313 F.3d 506, 520-21 (9th Cir.
2002) (quoting Johnson, 480 U.S. at 637-38). The appellant
claims that the Schools’ program fails under the first of these
criteria: rather than addressing a manifest internal imbalance,
9
Under the plan, the preference was slated to end as soon as the percent-
age of minority skilled craftworkers approximated the percentage of
minorities in the local labor force. Weber, 443 U.S. at 208-09.
DOE v. KAMEHAMEHA SCHOOLS 8951
it seeks to address an imbalance external to its student popula-
tion.
[8] We do not address the appellant’s claims because we
find the second of Weber’s guiding principles fatal to the pro-
gram in place at the Kamehameha Schools. The school’s
admission policy operates as an absolute bar to admission for
non-Hawaiians. Kamehameha’s unconditional refusal to
admit non-Hawaiians so long as there are native Hawaiian
applicants categorically “trammels” the rights of non-
Hawaiians. The Court in Runyon made clear that an admis-
sions policy that consciously and conspicuously denies admis-
sion to all members of the non-preferred race on account of
their race is “a classic violation of § 1981.” 427 U.S. at 172.
Appellees argue, nonetheless, that the need is so great that
the Schools should be permitted to admit only native Hawai-
ians until the educational deficits affecting that community
disappear. They present abundant evidence demonstrating that
native Hawaiians are over-represented in negative socioeco-
nomic statistics such as poverty, homelessness, child abuse
and neglect, and criminal activity; they are more likely to live
in economically disadvantaged neighborhoods and attend
low-quality schools; and, because of low levels of educational
attainment, they are severely under-represented in profes-
sional and managerial positions, and over-represented in low-
paying service and labor occupations. In sum, they urge, even
though the admissions policy creates an “absolute bar,” it is
necessary for the Schools to “trammel” the interests of non-
aboriginal applicants in order to reach its goal.
[9] To accept this argument, however, is to completely
abolish what we perceive to be an important limitation
embodied in Weber’s second principle: fairness to applicants
of the non-preferred race. Even if we assumed that some, lim-
ited racial preferences might be appropriate in order for the
Schools to advance its mission, an absolute bar on the basis
of race alone exceeds any reasonable application of Weber,
8952 DOE v. KAMEHAMEHA SCHOOLS
Rudebusch, and the cases that followed in their wake. “Classi-
fications of [persons] solely on the basis of race . . . threaten
to stigmatize individuals by reason of their membership in a
racial group and to incite racial hostility.” Shaw v. Reno, 509
U.S. 630, 643 (1993). Indeed, the sub-text to the Schools’ pol-
icy — that of all those who are found in poverty, homeless-
ness, crime and other socially or economically disadvantaged
circumstances, only native Hawaiians count — “perpetuate[s]
the notion that race matters most” and “ ‘may exacerbate the
very [conditions that Kamehameha’s policy is intended] to
counteract.’ ” Johnson v. California, 125 S. Ct. 1141, 1143
(2005) (quoting Shaw, 509 U.S. at 648). As we emphasized
in Coral Construction Co. v. King County, “race conscious
programs must be designed to minimize — if not avoid —
burdens upon nonculpable third parties.” 941 F.2d 910, 917
(9th Cir. 1991). We cannot agree with the district court’s con-
clusion that the challenged program constitutes a valid affir-
mative action plan supplying a legitimate nondiscriminatory
reason for the Schools’ racially exclusionary admissions pol-
icy. Under the principles we find controlling, the Schools’
absolute bar to admission on the basis of race is invalid.
B
Appellees urge that Congress’s intent is essential to guiding
our interpretation of how § 1981 applies to a particular set of
facts. They argue that because Congress has given native
Hawaiians in general, and the Kamehameha Schools in partic-
ular, preferences in the context of education, see 20 U.S.C.
§ 7901 et seq.; 20 U.S.C. § 7511 et seq., our analysis must
harmonize these enactments by according the Schools greater
deference under § 1981. Appellees argue that it is inconceiv-
able that the same Congress that enacted preferences for
native Hawaiians would think that the Schools preferences
violate § 1981; additionally, they argue that we can give
§ 1981 this more generous reading because § 1981 was
amended in the Civil Rights Act of 1991.
DOE v. KAMEHAMEHA SCHOOLS 8953
We have located no authority for the proposition that con-
gressional intent, as manifested by scattered statutes adopted
specially for the benefit of native Hawaiians, is sufficient to
modify the standards embodied in a statute of general applica-
bility. We cannot imagine the task of trying to harmonize all
of the various acts of Congress — a prodigious output that is
ever expanding and contracting — with statutes of general
applicability such as § 1981.10 Congress is quite capable of
creating exceptions for such laws, and we would intrude on
its ability or willingness to do so if we scoured the U.S. Code
for hints of contrary intent. For reasons both of separation of
powers and our own sanity, we will not undertake such a task.
Rather, our role, in the context of § 1981, “is limited to inter-
preting what Congress may do and has done.” Patterson, 491
U.S. at 188.
Judge GRABER, in dissent, urges us to consider 20 U.S.C.
§ 4905(a) (1991) (repealed 1994) as evidence of Congress’s
intent to abrogate the otherwise plain language of § 1981 as
it applies to the Kamehameha Schools’ racially exclusionary
admissions policy. We are told that because the now repealed
§ 4905(a) authorized grants to the Kamehameha Schools to
develop a demonstration program to support native Hawaiians
who choose to attend college, it follows as an “inescapable
conclusion” that Congress intends the Schools to refuse to
admit, into its K-12 program, anyone without aboriginal
blood. Dissent, at 8966. Even assuming, arguendo, the prem-
ise that § 1981 may affect parties differently when Congress
so directs, we cannot agree that a statute adopted in 1988 and
repealed in 1994 created a native Hawaiian carve-out for
§ 1981.11
10
This is particularly true when we deal with a statute of such venerable
provenance as § 1981, one that long pre-dates Congress’s more recent
native Hawaiian preferences.
11
Reading § 4905(a) to authorize exclusive racial preferences for native
Hawaiians in education may raise constitutional problems in light of the
Supreme Court’s decision in Rice. See Rice, 528 U.S. at 518 (declining to
8954 DOE v. KAMEHAMEHA SCHOOLS
Over the years, Congress has directed research, support and
assistance at numerous minority groups, as well as the cate-
gory of “minorities” in general. See, e.g., Minority Access to
Research Careers Program, 42 U.S.C. §§ 241, 285k, 288,
288a (1988); Patricia Roberts Harris Fellowship Program,
Pub.L. 99-498, Title IX, § 901(a), Oct. 17, 1986, 100 Stat.
1550 (repealed Pub.L. 105-244, Title VII, § 702, Oct. 7, 1998,
112 Stat. 1803); Excellence in Mathematics, Science and
Engineering Act of 1990, Pub. L. No. 101-589, 104 Stat. 2881
(1990); African-American History Landmark Theme Study,
Pub.L. 102-98, Aug. 17, 1991, 105 Stat. 485 (1991). But it
would be overreaching to interpret these statutes as blanket
approval for private race discrimination that is otherwise vio-
lative of § 1981. So far as we are aware, Congress has never
even considered the racial bar to admission in place at the
Kamehameha Schools, and we cannot infer implicit approval
from a statute that merely authorized financial support for
college-bound native Hawaiians. Thus, while we agree with
the dissent that we should read statutes capable of co-
existence “to give effect to each,” we find no conflict between
§ 4905(a), which authorizes federal financial assistance to
promote native Hawaiian higher education, and § 1981, which
forbids a private institution from erecting an absolute bar to
admission or advancement solely on the basis of race. Watt v.
Alaska, 451 U.S. 259, 267 (1981).
Importantly, we find little to suggest that Congress, in
enacting the Civil Rights Act of 1991, intended to do anything
uphold a race-based voting restriction for native Hawaiians absent “some
beginning premises not yet established in [the Court’s] case law[;]”
namely, that Congress “has determined that native Hawaiians have a status
like that of Indians in organized tribes”). If Congress’s classifications
based on native Hawaiian status are, indeed, of a racial nature, they may
fall subject to strict scrutiny under the equal protection component of the
Fifth Amendment. See Adarand, 515 U.S. at 227 (“[A]ll racial classifica-
tions, imposed by whatever federal, state, or local governmental actor,
must be analyzed by a reviewing court under strict scrutiny.”).
DOE v. KAMEHAMEHA SCHOOLS 8955
more than overrule the holding in Patterson, 491 U.S. at 177-
80, and codify the holding in Runyon, 427 U.S. at 170-71.
See, e.g., H.R. REP. No. 102-40, 102d CONG., 1st SESS., pt.II,
at 37 (1991) (“[Subsection (b)] overrules Patterson by adding
a new subsection to Section 1981. . . . [Subsection (c)] is
intended to codify Runyon v. McCrary.”). To divine, from
scattered statutes enacted years apart, that Congress has mani-
fested an obvious intent to alter the application of § 1981 to
exclusionary racial preferences granted on behalf of native
Hawaiians — or, indeed, that Congress has considered the
interrelationship of these statutes at all — grants considerably
more weight to congressional silence than we find appropriate
in this context.
[10] Absent proof that Congress has validly exempted the
Schools — or the class of native Hawaiians as a whole —
from the substantive commands of § 1981, we can ascertain
no basis for subjecting a private school’s racial preference
premised on aboriginal blood to a wholly different standard
than all other racial preferences challenged under the statute.
We thus turn to the question of whether Congress has implic-
itly exempted the Schools from § 1981.
C
[11] Appellees’ argument — that a preference for native
Hawaiians should be analyzed under a relaxed level of scru-
tiny in light of the unique trust relationship between the fed-
eral government and the native Hawaiian people — is,
essentially, a generalized appeal to the “special relationship
doctrine” typically advanced to support preferences accorded
members of federally recognized Indian tribes. Using this
doctrine, the Supreme Court has, on numerous occasions, spe-
cifically upheld legislation granting preferential treatment to
Native Americans. See, e.g., Mancari, 417 U.S. at 550 (col-
lecting cases).
The seminal case recognizing the doctrine, upon which all
subsequent cases rely, is the Supreme Court’s 1974 decision
8956 DOE v. KAMEHAMEHA SCHOOLS
in Morton v. Mancari, 417 U.S. at 553. In Mancari, the Court
observed that the preference in question — a Bureau of Indian
Affairs hiring preference for Native Americans — was “not
directed towards a ‘racial’ group consisting of ‘Indians’,” but
instead applied “only to members of ‘federally recognized’
tribes.” Id. at 553 & n.24. See also id. at 554 (“The prefer-
ence, as applied, is granted to Indians not as a discrete racial
group, but, rather, as members of quasi-sovereign tribal enti-
ties whose lives and activities are governed by the BIA in a
unique fashion.”). In this sense, the Court determined, “the
preference is political rather than racial in nature” and,
accordingly, should be reviewed merely to determine whether
it is reasonably and rationally designed to further Indian self-
government. Id. at 553 n.24 (emphasis added). Concluding
that it was, the Court upheld the validity of the hiring prefer-
ence against a Title VII challenge. Id. at 554 (“Here, the pref-
erence is reasonably and directly related to a legitimate,
nonracially based goal. This is the principal characteristic that
generally is absent from proscribed forms of racial discrimi-
nation.”). Later cases have applied Mancari’s analysis with-
out modifying the distinction between classifications based on
political affiliation and those based on race. See, e.g., Wash-
ington v. Confederated Bands & Tribes of Yakima Indian
Nation, 439 U.S. 463, 500-01 (1979) (“It is settled that the
unique legal status of Indian tribes under federal law permits
the Federal Government to enact legislation singling out tribal
Indians, legislation that might otherwise be constitutionally
offensive.” (internal quotation marks omitted)); United States
v. Antelope, 430 U.S. 641, 645 (1977) (“The decisions of this
Court leave no doubt that federal legislation with respect to
Indian tribes, although relating to Indians as such, is not based
upon impermissible racial classifications. Quite the contrary,
classifications expressly singling out Indian tribes as subjects
of legislation are expressly provided for in the Constitution
and supported by the ensuing history of the Federal Govern-
ment’s relations with Indians.” (footnote omitted)); Fisher v.
Dist. Court, 424 U.S. 382, 390 (1976) (per curiam) (“[W]e
DOE v. KAMEHAMEHA SCHOOLS 8957
reject the argument that denying [the Indian plaintiffs] access
to the Montana courts constitutes impermissible racial dis-
crimination. The exclusive jurisdiction of the Tribal Court
does not derive from the race of the plaintiff but rather from
the quasi-sovereign status of the Northern Cheyenne Tribe
under federal law.”).
[12] As it has for Native Americans, Congress has enacted
numerous statutes providing separate benefit programs for
native Hawaiians or including them in benefit programs that
assist other native people. See, e.g., Hawaiian Homes Com-
mission Act § 1 et seq., 42 Stat. 108 (1920) (setting aside
200,000 acres and establishing a program of loans and long-
term leases for the benefit of Native Hawaiians); Department
of Defense Appropriations Act, Pub. L. No. 103-335, 108
Stat. 2599, 2652 (1994) (“In entering into contracts with pri-
vate entities to carry out environmental restoration and
remediation of Kaho‘olawe Island . . . the Secretary of the
Navy shall . . . give especial preference to businesses owned
by Native Hawaiians”); Native Hawaiian Education Act, 20
U.S.C. § 7512(13) et seq. (establishing programs to facilitate
the education of Native Hawaiians and asserting a “political
relationship between the United States and the Native Hawai-
ian people”); Native American Graves Protection and Repatri-
ation Act, 25 U.S.C. § 3001 et seq. (extending protection to
American Indian and Native Hawaiian burial sites); Native
Hawaiian Health Care Improvement Act of 1992, 42 U.S.C.
§ 11701(17) et seq. (creating a number of programs aimed at
improving health care for Native Hawaiians and stating, “The
authority of the Congress under the United States Constitution
to legislate in matters affecting the aboriginal or indigenous
peoples of the United States includes the authority to legislate
in matters affecting the native peoples of Alaska and
Hawaii”); Hawaiian Homelands Homeownership Act of 2000,
Pub. L. No. 106-569, §§ 511-514, 114 Stat. 2944, 2966-67,
2990 (providing governmental loan guarantees “to Native
Hawaiian families who otherwise could not acquire housing
financing”); National Historic Preservation Act, 16 U.S.C.
8958 DOE v. KAMEHAMEHA SCHOOLS
§ 470-1(2) (to “provide leadership in the preservation of the
prehistoric and historic resources of the United States and of
the international community of nations and in the administra-
tion of the national preservation program in partnership with
States, Indian tribes, Native Hawaiians, and local govern-
ments”); National Museum of the American Indian Act, 20
U.S.C. § 80q(8) (providing for the return of Native Hawaiian
human remains and funerary objects as well as the creation of
a museum exclusively for the preservation and study of the
history and artifacts of Native Americans); Drug Abuse Pre-
vention, Treatment and Rehabilitation Act, 21 U.S.C.
§ 1177(d) (involving grant applications aimed at combating
drug abuse and providing: “The Secretary shall encourage the
submission of and give special consideration to applications
under this section to programs and projects aimed at underser-
ved populations such as racial and ethnic minorities, Native
Americans (including Native Hawaiians and Native American
Pacific Islanders), youth, the elderly, women, handicapped
individuals, and families of drug abusers.”); Native American
Languages Act, 25 U.S.C. §§ 2901-06 (including Native
Hawaiian languages in the ambit of Native American lan-
guages accorded statutory protection); Workforce Investment
Act of 1998, 29 U.S.C. § 2911(a) (“The purpose of this sec-
tion is to support employment and training activities for
Indian, Alaska Native, and Native Hawaiian individuals”);
American Indian Religious Freedom Act, 42 U.S.C. § 1996
(“it shall be the policy of the United States to protect and pre-
serve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions of the
American Indian, Eskimo, Aleut, and Native Hawaiians,
including but not limited to access to sites, use and possession
of sacred objects, and the freedom to worship through cere-
monials and traditional rites.”); Native American Programs
Act of 1974, 42 U.S.C. §§ 2991-92, 2991a (including Native
Hawaiians in a variety of Native American financial and cul-
tural benefit programs: “The purpose of this subchapter is to
promote the goal of economic and social self-sufficiency for
DOE v. KAMEHAMEHA SCHOOLS 8959
American Indians, Native Hawaiians, other Native American
Pacific Islanders (including American Samoan Natives), and
Alaska Natives.”); Comprehensive Alcohol Abuse and Alco-
holism Prevention, Treatment, and Rehabilitation Act, 42
U.S.C. § 4577(c)(4) (giving preference to grant applications
aimed at combating drug abuse: “The Secretary shall encour-
age the submission of and give special consideration to appli-
cations under this section for programs and projects aimed at
underserved populations such as racial and ethnic minorities,
Native Americans (including Native Hawaiians and Native
American Pacific Islanders), youth, the elderly, women, hand-
icapped individuals, public inebriates, and families of alcohol-
ics.”); 20 U.S.C. § 4441 (providing funding for Native
Hawaiian arts and cultural development); Older Americans
Act of 1965, 42 U.S.C. § 3001 et seq., 45 C.F.R. § 1328.1
(2004) (establishing a “program . . . to meet the unique needs
and circumstances of Older Hawaiian Natives”). Insofar as
these statutes have articulated a constitutional basis, they have
usually asserted that the programs are enacted pursuant to a
special relationship between the federal government and
native Hawaiians akin to that with Native Americans. See,
e.g., 20 U.S.C. § 7512(13) (containing findings); 42 U.S.C.
§ 11701(17) (same); 20 U.S.C. § 4901 (1991) (repealed 1994)
(same).
In addition, Congress has expressly, and repeatedly, deter-
mined that the United States wrongfully participated in the
demise of the Hawaiian Monarchy, see, e.g., Native Hawaiian
Education Act, 20 U.S.C. § 7512 (findings); Native Hawaiian
Health Care Improvement Act, 42 U.S.C. § 11701 (findings);
Apology Resolution, S. Joint Res. No. 19, Pub. L. No. 103-
150, 107 Stat. 1510 (1993), the harmful consequences of
which, in terms of the decimation and suffering wrought on
the native Hawaiian people and culture, are well documented.
See, e.g., Kamehameha Sch., 295 F. Supp. 2d at 1150-55. See
also FUCHS, HAWAII PONO: AN ETHNIC AND POLITICAL HISTORY
(1961); R. KUYKENDALL, THE HAWAIIAN KINGDOM (1967).
Accordingly, Congress has asserted that the United States has
8960 DOE v. KAMEHAMEHA SCHOOLS
a political relationship with, and a special trust obligation to,
native Hawaiians as the indigenous people of Hawaii. See,
e.g., 20 U.S.C. § 7512; 42 U.S.C. § 11701.
We find it of some significance, however, that, in legislat-
ing for native Hawaiians, Congress has not consistently
treated them in the same manner as Native Americans.
Rather, Congress has, on occasion, opted to exclude native
Hawaiians from beneficial programs created for Native Amer-
icans. See Kahawaiolaa v. Norton, 386 F.3d 1271, 1282 (9th
Cir. 2004) (observing that “Congress has specifically included
. . . native Hawaiians . . . in certain privilege-granting statutes
while specifically excluding [them] . . . from a number of oth-
ers”; collecting statutes). Nonetheless, Appellees appeal to
those statutes enacted for the benefit of native Hawaiians to
support their argument that the Kamehameha Schools’ racial
preference should be analyzed under a deferential form of
scrutiny that recognizes Congress’s special trust relationship
and maintains consistency among its legislative enactments.
We find this argument foreclosed by Appellees’ explicit con-
cession that the preference at issue constitutes discrimination
on the basis of race.
Even assuming that Congress may validly exempt native
Hawaiians from the substantive commands of § 1981,12 a pri-
vate school’s admissions preference cannot be exclusively
racial, yet simultaneously subject to the special relationship
doctrine. The Court’s decision in Mancari, 417 U.S. at 553
n.24, took pains to emphasize the nonracial nature of the chal-
lenged hiring preference, expressly ruling that the precise
classification at issue, which was based on Indian tribal affili-
12
Cf. Rice, 528 U.S. at 518. See also Stuart Minor Benjamin, Equal Pro-
tection and the Special Relationship: The Case of Native Hawaiians, 106
YALE L.J. 537, 539-40 (1996) (arguing that “without a Native Hawaiian
political entity that can constitute an ‘Indian Tribe[ ]’ for constitutional
purposes, there is no ‘special relationship’ between Native Hawaiians and
the federal government pursuant to which programs singling out Native
Hawaiians would be subject to rational basis review”).
DOE v. KAMEHAMEHA SCHOOLS 8961
ation, was not racial, but, rather, political in nature; for this
reason, it was subject only to rational basis review.13 The
same principle does not apply to the classification employed
by the Kamehameha Schools, which Appellees concede to be
exclusively racial in nature, design and purpose. Thus,
because we conclude that Appellees have waived the issue,
we find it unnecessary to address whether Congress has val-
idly exempted native Hawaiians from § 1981’s substantive
mandate.
Judge GRABER would find that the United States govern-
ment enjoys a trust relationship “that parallels (but is not iden-
tical to) that between the federal government and Native
Americans.” Dissent, at 8967. Only five years ago, in the con-
text of a challenge brought under the Fifteenth Amendment,
the Supreme Court declined an invitation to hold as much,
concluding that to do so “would [ ] require[ ] accept[ing]
some beginning premises not yet established in [the Court’s]
case law.” Rice, 528 U.S. at 518. Importantly, the Court was
unwilling to hold that Congress “has determined that native
Hawaiians have a status like that of Indians in organized
tribes.” Id. We are unaware of any single case or statute that
has intervened to establish these “beginning premises;”
indeed, the only statute the dissent relies on at any length —
20 U.S.C. § 4905(a) — had been enacted and repealed long
before the Court’s decision in Rice. In sum, it remains unclear
whether the United States government enjoys a trust relation-
ship with native Hawaiians similar to that enjoyed with orga-
nized tribes. But under the statutes and case law as they exist
now, we, like the Court in Rice, find it advisable to “stay far
off that difficult terrain.” Rice, 528 U.S. at 519.
[13] We acknowledge that the status of native Hawaiians
and their relationship, as a class, to the federal government
13
Moreover, the Court, in Mancari, was careful to note that its decision
was confined to the authority of the Bureau of Indian Affairs, 417 U.S. at
554, a limitation later emphasized by the Court in Rice, 528 U.S. at 520.
8962 DOE v. KAMEHAMEHA SCHOOLS
presents difficult questions of serious import, complicated
both by history and by politics, and carrying tremendously
far-reaching consequences. See Rice, 528 U.S. at 501 (“The
status of Hawaiian lands has presented issues of complexity
and controversy from at least the rule of Kamehameha I to the
present day.”). See also Jon M. Van Dyke, The Political Sta-
tus of the Native Hawaiian People, 17 YALE L. & POL’Y REV.
95 (1998); Stuart Minor Benjamin, Equal Protection and the
Special Relationship: The Case of Native Hawaiians, 106
YALE L.J. 537 (1996). Nonetheless, it does not follow from
Mancari, or from any other authority of which we are aware,
that Congress may authorize a private school to exclusively
restrict admission on the basis of an express racial classifica-
tion. Rather, the Court’s decisions in this arena have empha-
sized the nonracial nature of classifications held to withstand
scrutiny under modern civil rights laws. Because Appellees
do not argue that the classification in question should be
viewed as anything but expressly racial, we refrain from
addressing the matter further. See Rice, 528 U.S. at 519.
V
[14] We emphasize that our ruling today is a narrow one.
We conclude only that the plaintiff-appellant has met his bur-
den of establishing the invalidity of the racially exclusionary
affirmative action plan in place at the Kamehameha Schools,
as that plan currently operates as an absolute bar to admission
for those of the non-preferred race. Nothing in our decision,
however, implicates the validity of the Pauahi Bishop Will, as
we do not read that document to require the use of race as an
admissions prerequisite. Consequently, we affirm the entry of
summary judgment for the Bernice Pauahi Bishop Estate and
its individual trustees.
[15] For the foregoing reasons, the decision of the district
court granting summary judgment to the Kamehameha
Schools is reversed. In all other respects, the judgment is
DOE v. KAMEHAMEHA SCHOOLS 8963
affirmed. The case is remanded for proceedings consistent
with this opinion.
AFFIRMED IN PART; REVERSED IN PART.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
I respectfully dissent from the majority’s conclusion that 42
U.S.C. § 1981 bars the admissions policy of the Kamehameha
Schools. Our only task is to discern Congress’ intent with
respect to the application of § 1981 to a wholly private,
Hawaiian institution that educates Native Hawaiian children
in Hawaii. Although I have no quarrel with many of the gen-
eral principles set forth so gracefully in the majority opinion
—and, indeed, I concur in the opinion insofar as it applies
Title VII principles, rather than strict scrutiny, to admissions
preferences by a private school—I cannot agree with the opin-
ion’s narrow perspective on congressional intent.
When Congress first enacted § 1981 in 1866, the Hawaiian
Islands were still a sovereign kingdom. But in 1991, when
Congress revisited and reenacted § 1981 in the Civil Rights
Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071,
Congress’ view of the statute’s proper scope presumptively
was informed by the body of law that had developed in the
interim. See Miles v. Apex Marine Corp., 498 U.S. 19, 32
(1990) (“We assume that Congress is aware of existing law
when it passes legislation.”); 1A Norman J. Singer, Suther-
land Statutory Construction § 23.10, at 487 (6th ed. 2002)
(describing the doctrine that “the legislature is presumed to
envision the whole body of the law when it enacts new legis-
lation”). It is our duty to harmonize § 1981, to the extent pos-
sible, with the statutory context in which Congress acted. See
Watt v. Alaska, 451 U.S. 259, 267 (1981) (“We must read
[apparently conflicting] statutes to give effect to each if we
8964 DOE v. KAMEHAMEHA SCHOOLS
can do so while preserving their sense and purpose.”); Morton
v. Mancari, 417 U.S. 535, 551 (1974) (“[W]hen two statutes
are capable of co-existence, it is the duty of the courts, absent
a clearly expressed congressional intention to the contrary, to
regard each as effective.”).
In 1988, just three years before its reenactment of § 1981,
Congress recognized the United States government’s unique
relationship with Native Hawaiians, acknowledged the severe
socioeconomic and educational disadvantages experienced by
Native Hawaiians, and authorized federal money for private
entities—including the Kamehameha Schools—to provide
loans and scholarships exclusively to Native Hawaiians. For
example, Congress found, in the Native Hawaiian Health Care
Act of 1988, Pub. L. No. 100-579, § 2(2) 102 Stat. 2916, that
the federal government’s contributions to improving the
health of Native Hawaiians “are consistent with the historical
and unique legal relationship of the United States with the
government that represented the indigenous native people of
Hawaii.”
Congress spoke particularly, and at length, to the educa-
tional needs of Native Hawaiians in the Augustus F. Hawkins-
Robert T. Stafford Elementary and Secondary School
Improvement Amendments of 1988 (“Hawkins-Stafford
Amendments”), Pub. L. No. 100-297, tit. IV, § 4001
(“Education for Native Hawaiians”), 102 Stat. 130:
The Congress finds and declares that —
(1) the Federal Government retains the legal
responsibility to enforce the administration of the
State of Hawaii’s public trust responsibility for the
betterment of the conditions of Native Hawaiians;
(2) in furtherance of the responsibility for the bet-
terment of the conditions of Native Hawaiians, Con-
DOE v. KAMEHAMEHA SCHOOLS 8965
gress has the power to specially legislate for the
benefit of Native Hawaiians;
(3) the attainment of educational success is criti-
cal to the betterment of the conditions of Native
Hawaiians;
(4) it is the policy of the Federal Government to
encourage the maximum participation of Native
Hawaiians in the planning and management of
Native Hawaiian Education Programs;
....
(9) special efforts in education recognizing the
unique cultural and historical circumstances of
Native Hawaiians are required.
20 U.S.C. § 4901 (1991) (repealed 1994).1
Having made those findings, Congress specifically directed
the Secretary of Education to “make grants to the Kameha-
meha Schools/Bernice Pauahi Bishop Estate” — that is, to the
Defendants in this case — “for a demonstration program to
provide Higher Education fellowship assistance to Native
Hawaiian students.” 20 U.S.C. § 4905(a) (1991) (repealed
1994) (emphasis added).2 The sole beneficiaries of this federal
1
Even though the quoted sections were repealed in 1994, they signal
Congress’ sustained intent. First, the statutes were in effect in 1991 when
Congress re-enacted § 1981. Second, Congress has continued throughout
the years to make similar findings about the unique educational needs of
Native Hawaiian children and the unique relationship between the United
States government and the Native Hawaiian people. See, e.g., 20 U.S.C.
§ 7512. Congress also has continued to authorize funds for educational
programs serving Native Hawaiian children. See, e.g., id. § 7515.
2
In 1987, a year before the enactment of the Hawkins-Stafford Amend-
ments, Congress had provided funds for a “Native Hawaiian organization”
to “make loans to Native Hawaiian organizations and to individual Native
Hawaiians for the purpose of promoting economic development in the
State of Hawaii.” Native American Programs Act Amendments of 1987,
Pub. L. No. 100-175, tit. V, § 506(a), 101 Stat. 926 (emphasis added).
8966 DOE v. KAMEHAMEHA SCHOOLS
fellowship assistance were to be “Native Hawaiian,” a term
that was defined in the statute—as it is in the Kamehameha
Schools’ admission policy—to mean “a descendant of the
aboriginal people, who prior to 1778, occupied and exercised
sovereignty in the area that now comprises the State of
Hawaii.” 20 U.S.C. § 4909(1)(C) (1991) (repealed 1994).
Compare id. with Doe v. Kamehameha Sch./Bernice Pauahi
Bishop Estate, 295 F. Supp. 2d 1141, 1156-57 (D. Haw. 2003)
(describing the Schools’ admissions policy).
That exclusive educational preference for Native Hawai-
ians, which was motivated by the need to remedy abysmal
socioeconomic and educational conditions and by the United
States government’s unique relationship with and responsibil-
ity for Native Hawaiians, was part of the statutory context
into which § 1981 was reenacted. Having just adopted this
private, remedial, exclusive preference for Native Hawaiians,
Congress could not have intended for § 1981 to bar, categori-
cally, every private program that provides an exclusive prefer-
ence to Native Hawaiians. And, for that reason, I disagree that
the mere fact that Kamehameha Schools grants an exclusive
preference to Native Hawaiian applicants is dispositive of this
case. Indeed, the inescapable conclusion from the statutory
context is that in 1991 Congress intended that a preference for
Native Hawaiians, in Hawaii, by a Native Hawaiian organiza-
tion, located on the Hawaiian monarchy’s ancestral lands, be
upheld because it furthers the urgent need for better education
of Native Hawaiians, which Congress had identified explicitly
in 1988.
The majority holds that § 1981 forbids all exclusive racial
preferences (whether remedial or not) and suggests that politi-
cal status is the only alternative justification for the Schools’
exclusive preference for Native Hawaiians. See maj. op. at
8951-52. Thus, the Schools’ concession that “Native Hawai-
ian” is a racial category, for purposes of this case, dooms its
policy under the majority’s view. See maj. op. at 8957-60. I
do not perceive such a dichotomy between the racial and the
DOE v. KAMEHAMEHA SCHOOLS 8967
political aspects of the Schools’ preference for Native Hawai-
ian applicants. That is, if “Native Hawaiian” is indeed a racial
category, then Congress has shown by its actions that an
exclusive, remedial, racial preference can be permissible, at
least when it is employed to remedy demonstrable and
extreme educational and socioeconomic deficiencies that are
faced by a racial group that (a) is descended from people
whose sovereignty and culture were upended and nearly
destroyed, in part by the actions of the United States, and (b)
consequently enjoys a special trust relationship with the
United States government that parallels (but is not identical
to) that between the federal government and Native Ameri-
cans. These factors distinguish Native Hawaiians from the
other racial groups mentioned by the majority, see maj. op. at
8953-54, who have received special funding. In other words,
we need not decide that Native Hawaiians have any particular
political status in order to recognize, as Congress has, that the
Kamehameha Schools pursue unique remedial objectives and
may, consistent with congressional intent, employ special
remedial tools.
The Supreme Court has not established “a rigid formula for
testing the validity of an affirmative action plan” applied by
a private employer, Johnson v. Transp. Agency, 770 F.2d 752,
757 (9th Cir. 1985), nor has it spoken at all to the operation
of § 1981 with respect to remedial preferences at a private
school. In the absence of more specific Supreme Court guid-
ance, we should look directly to congressional intent. Con-
gress clearly meant to allow for the private education of
Native Hawaiian children at the Kamehameha Schools.
Because the statutory context demonstrates that Congress did
not intend for § 1981 to bar all exclusive preferences to rem-
edy the severe educational deficits suffered by Native Hawai-
ians, a population unique within this country, and because
Kamehameha Schools has amply demonstrated that its admis-
sion preference is regularly reviewed and currently required
to combat those deficits, I respectfully dissent from the major-
ity’s contrary conclusion.